NEW DELHI: The sustained effort by aggressive khap panchayats and their influential political backers to force leading political parties to have a rethink on same gotra marriages is patently illegal. Sixty-five years ago, in 1945, the issue was settled by the Bombay High Court which categorically declared same gotra marriages were legal. And that's been the law of the land since.

In wake of the khap panchayat's defiance of the law, not only have top politicians like Om Prakash Chautala and Naveen Jindal caved in - no doubt to retain the political support of these medieval organisations - but national parties like BJP, too, have been wavering. The BJP on Thursday talked about building a "consensus" on the issue, indicating there was scope for modifying the legal view on same-gotra marriages. Even the Congress is said to be keeping its cards close to the chest.

So, even as khaps spit fire at courts for holding such marriages legal, it is instructive to learn about the rigour with which two reputed judges went into the issue in 1945, much before Hindu personal law was codified. They consulted the writings of leading experts and delved into the wisdom of the Hindu scriptures to arrive at their verdict.

The case, 'Madhavrao vs Raghavendrarao', involved a Deshastha Brahmin couple and the two-judge bench comprised Harilal Kania, the first chief justice of independent India, and P B Gajendragadkar, who became CJI in the 1960s.

The essence of the case was whether 'sagotra' marriage or marriage within the same gotra was valid under Hindu custom.

The court initially relied on a landmark 1868 case where the Privy Council had stated, "under the Hindu system of law, clear proof of usage will outweigh the written text of the law". However, a custom, which was at variance with the written text of Hindu law, had to be ancient, certain and reasonable if it was to be recognised by the court.

After going over several court rulings on the evidence to prove a custom, the bench concluded that the marriage in question between a husband and wife belonging to same gotra was valid. This argument could, however, be turned around by the khaps of Haryana to say that it is customary for Jats not to marry within the same gotra.

But, the court anticipated this sort of an argument and garnered textual proof for intra-gotra marriage. German scholar Max Mueller had defined 'gotras' as descending from eight sages and then branching out to severalfamilies.

The Court, however, referred to eminent scholar P V Kane, author of the 'History of Dharmashastra', who had said:

"The mass of material on 'gotra' and 'pravara' in the sutras, the puranas and digests is so vast and full of contradictions that it is almost an impossible task to reduce it to order and coherence."

On this ground, the court concluded that it was impossible to accept the suggestion that in reference to the Brahmin families of today, their gotras and pravaras represent anything like an unbroken line of descent from the common ancestors indicated by the names of their respective gotras and pravaras. After consulting the texts of Manu and Yajnavalkya, the court observed that the requirements on gotra were recommendatory, rather than mandatory.

Finally, the court stressed on the need of Hindu society and law to keep up with the times. It said, "Courts have to construe the texts of Hindu law in the light of the explanations given by recognised commentators. But it must always be remembered that since the said commentaries were written, several centuries have passed by and during this long period the Hindu mode of life has not remained still or static. Notions of good social behaviour and the general ideology of the Hindu society have been changing. The custom as to marriages between persons of the same gotra in this case is an eloquent instance in point."

This is something that the khaps and the Haryana politicians seem to have forgotten.

Same gotra marriages technically possible even without legal protection

Same gotra marriages technically possible even without legal protection

According to Vedic rites, a person's gotra can change in two ways:

For males:

If he is adopted by a man of a different gotra.

For females:

If she is adopted by a man of a different gotra.

If she marries (obviously into a different gotra, as same gotra marriages are forbidden).

However, in the event a good match is found where both the prospective bride and groom are from the same gotra, the girl is adopted by a man from a different gotra and thereafter, he performs kanyadaan at the time of marriage.

Ghotra follows the position of sun, moon, stars and what not at time of birth to decide who can marry who?

It's not a blood relationship.

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This is what I had known about gotra (see below) and yes it indeed is a blood relationship. Rules vary from community to community and region to region. In some places, they make sure there were no common ancestors in the last x generations.

Wikipedia defines gotra as:

The term Gotra broadly refers to people who are descendants in an unbroken male line from a common male ancestor. Panini defines gotra for grammatical purposes as ' apatyam pautraprabhrti gotram' (IV. 1. 162), which means 'the word gotra denotes the progeny (of a sage) beginning with the son's son. When a person says ' I am Kashypasa-gotra' he means that he traces his descent from the ancient sage Kashyapa by unbroken male descent. According to the BaudhÃ¢yanas'rauta-sÃ»tra VishvÃ¢mitra, Jamadagni, BharadvÃ¢ja, Gautama, Atri, Vasishtha, Kashyapa and Agastya are 8 sages; the progeny of these eight sages is declared to be gotras. This enumeration of eight primary gotras seems to have been known to PÃ¢Nini. The offspring (apatya) of these eight are gotras and others than these are called ' gotrÃ¢vayava '.

Yes, it is scientifically proven that in incestuous relationships, offsprings can be born with physical or mental disabilities, however, if the common ancestor is far back into the past beyond many many generations, the probability of disability tends to zero and hence a marriage can be performed.

Autism is one disease that has attracted much attention and it is believed that it can be seen in children born out of incestuous unions. However, that may not be the only cause. A child whose both parents are extremely studious, e.g., a child having both parents as Ph.D.s can be autistic, although the parents might not have any blood relationship.

Thanks Pamiatra for clearing things for the readers. Gotra restrictions are clearly mentioned in Ayurveda (Charak Samita, Aá¹£á¹­Äá¹…ga Samgraha of VÄgbhaá¹­a and many other books). Bases of such Practice were having very strong references/recommendations from available ancient sciences. Those practices were drafted on books after long observation, discussions with other sages and forwarded to next generations by Guru-Shishya Paramapra.

5. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Sec 2. (f)
(i) "sapinda relationship" with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;
(ii) Two persons are said to be "sapindas" of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;
(g) "degrees of prohibited relationship"-two persons are said to be within the "degrees of prohibited relationship"
(i) If one is a lineal ascendant of the other; or
(ii) If one was the wife or husband of a lineal ascendant or descendant of the other ; or
(iii) If one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters ;
Explanation.-For the purposes of clauses (f) and (g), relationship includes-
(i) relationship by half or uterine blood as well as by full blood;
(ii) illegitimate blood relationship as well as legitimate; (iii) relationship by adoption as well as by blood ; and all terms of relationship in those clauses shall be construed accordingly.

The marriage already a void marriage, if the relationship exist as brother and sister.

A girl in S. India may marry her maternal uncle, as it is permitted by local customs. Not so in N. India, where it is classified as INCEST.

The Court, however, referred to eminent scholar P V Kane, author of the 'History of Dharmashastra', who had said:

"The mass of material on 'gotra' and 'pravara' in the sutras, the puranas and digests is so vast and full of contradictions that it is almost an impossible task to reduce it to order and coherence."

On this ground, the court concluded that it was impossible to accept the suggestion that in reference to the Brahmin families of today, their gotras and pravaras represent anything like an unbroken line of descent from the common ancestors indicated by the names of their respective gotras and pravaras. After consulting the texts of Manu and Yajnavalkya, the court observed that the requirements on gotra were recommendatory, rather than mandatory.

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Based on Kane's observations which is essentially non committal and vague,i wonder how the learned judges conclude that the Dharmasatras were silent on the matter,furthermore the judges contradicted their own earlier observation by noting that Manu Smrti and Yagnavalkya Smrti recommend that Sagotra Vivaha be deemed forbidden.

If the Dharmic texts are to be consulted,the Dharmasastras(including the most important smrtis of Manu,Yagnavalkyaand Parasara) The Dharmasutras(Like Gautama and Baudhayana and the Grhyasutras(like Asvalyana,Paraskara and Apastampa)all completely forbid marriage between sapinda and Sagotra couples,and in certain cases those of Sapravara.

If the govt starts digging into the Dharmasatras they will only strengthen the case of the Khap Panchayats in their demand for delegalization sagotra marriage.The Hindu Marriage Act of 1955 is not entirely based on Hindu treatises on Dharma,like Dharmasastras and Grhyasutras,rather its a codices of a compendium of Hindu customs and practices of various Hindu communities that was prevalent in India at the time.Many or all of them may have their origins in the Dharmacharas,which were sourced to the Dharma sastras and sutras.

If the govt wants to reform the Hindu marriage Act,it just has to go ahead and do it,like the way the act was enacted in the first place,without trying to indulge in the vain pursuit of scriptural sanctity,which does not exist and its unlikely to be found with sufficient certainty.

SATA, first decide what you want. Do you want to oppose each and every stand of the khaps? Or do you swear by the law as it exists, even if it is rooted in ancient laws. Then you will have to oppose the prohibited categories in SMA and CMA too. I have shown that spinda marriages aka sagotra marriages are void/voidable in HMA.